point persons The court may, on application of either party, appoint a com- Court may appetent person or persons to examine the premises, or to sur- to examine vey the same, or both, as may be deemed necessary. premises, etc. proof of the SEC. 12. The court in which such proceedings are begun Shall allow shall allow proof that the drain was necessary and conducive necessity of to the public health, convenience or welfare, and that all the the drain. steps required by law have been substantially complied with, notwithstanding the record required to be kept by the county drain commissioner. In case no substantial error is found, May correct gross injusthe court may correct any gross injustice in the award of dam- tice. ages, or assessment of benefits, as may appear after hearing the proofs and allegations of both sides and shall make such order in the premises as shall be just and equitable, and may order May make that such tax or assessment remain on the tax roll for collec- shall be just. tion, or order the same to be relevied, or may perpetually enjoin the same, or any part thereof, or if the same has been paid under protest, may order the whole, or such part thereof as is just and equitable to be refunded. The costs of such Costs of proceedings. proceedings, if error or injustice be shown, shall be apportioned among the parties, or if no manifest error or injustice be shown, such costs shall be collected of the party bringing the action. such order as declares pro to relay and reassess tax benefited. readvertising. SEC. 13. Whenever any drain has been located, established In case court and the work of construction completed, or partially com- ceedings pleted, and any court has declared such proceeding illegal or illegal." void for any cause other than that such drain is unnecessary, and not conducive to the public health, convenience or welfare, the commissioner shall, without unnecessary delay, proceed to Commissioner relay and complete such drain under the provisions of this complete act, and reassess upon the lands benefited by such drain the drain, and original cost thereof, together with the expenses of relaying upon lands and completing, and shall continue so to do until such drain has been legally established and constructed: Provided, That Proviso as to on such relaying or completion of such drain proceedings it shall not be necessary to readvertise a day of letting; but he shall advertise a day of review for benefits; which review may be held at the office of the county drain commissioner: Pro- Further provided further, That any person who has paid the tax for benefits once paid. assessed against him for such drain shall be allowed the amount so paid, and the township treasurer, or other officer authorized to receive payment for taxes assessed in any township, or city, shall accept the receipt heretofore issued for the payment of such drain taxes as cash, the same to apply on such renewed assessment. The receipt so received by the town- Receipt to apship treasurer or other officer shall be credited to him and sessment. allowed as money. The provisions of this section shall also The provisions apply to drains laid out and wholly or partly constructed under to drains herethe provisions of all drain laws in force prior to the passage of tofora.comthis act. Viso as to tax ply on reas hereof apply pleted. Drain commis for drain taxes. SEC. 14. Any drain taxes that may have been assessed and stoner may sue returned upon any lands under and by virtue of the provisions of any drain law heretofore enacted and remaining unpaid, may be sued for by the drain commissioner of the county in which such delinquent lands are situated in an action of assumpsit before any court of competent jurisdiction and collected from the owner of such lands or such taxes, if properly returned to the county treasurer, may be ordered charged back by the board of supervisors, and reassessed upon such lands in the same manner that unpaid or rejected taxes may be charged back by the Auditor General and reassessed under the general provisions of law. Taxes may be charged back and reassessed. May declare in an action of debt. Proof. SEC. 15. In any suit brought for the collection of any unpaid drain taxes by virtue of the last preceding section, the county drain commissioner bringing such suit may declare in an action of assumpsit against the defendant, proof of the amount of the tax, and that it is unpaid, either oral, or by the production of the tax roll, shall be prima facie evidence of the General issue. plaintiff's right to recover; but the defendant may plead the general issue, and give evidence in reduction of damages, and the plaintiff may offer evidence in rebuttal, and if it shall appear from such evidence that the actual benefits to the land by reason of the construction of the drain were less than the amount of the tax, judgment shall be only for the amount of the benefits as proven, with interest and costs: Provided, That no such proceedings shall be instituted by the county drain commissioner at the expense of the county, unless he shall be authorized to do so by the board of supervisors. Evidence in rebuttal. Judgment for benefits only. Proviso. Commission er may insticeedings when tute new pro tax set aside. When to report. County drain commissioner to be made SEC. 16. In case any drain tax heretofore, or to be hereafter assessed, shall be set aside except for causes that would deprive the county drain commissioner of jurisdiction to construct the drain, the commissioner may begin proceedings anew at the stage where they shall be correct. In case a drain tax can or may be set aside for error in description or other defects in the county drain commissioner's or township treasurer's roll, the county drain commissioner shall report the same to the board of supervisors, at their October session, who shall order the same reassessed upon the proper description. Such report may be made at any time before the sale of the land for such tax. SEC. 17. In any suit brought to set aside any drain tax, or in any way attacking the legality of any drain proceedings, the county drain commissioner shall be made a party to said suit, and it shall be the duty of the prosecuting attorney of the county where said drain is situated to defend said drain proceedings, and the prosecuting attorney shall receive such compensation therefor as the board of supervisors shall deem just. Drain commis- If the drain commissioner shall deem it necessary he may party to suit to set aside drain tax. Prosecuting attorney to defend. Compensa tion. sioner may employ counsel. employ additional legal counsel, and said counsel's account for services rendered shall be certified to by the county drain com counsel. missioner and audited and allowed by the board of supervis- Payment of ors and paid out of the general fund of the county. Said gen- General fund eral fund shall be reimbursed in the same manner as provided for in section thirteen of chapter three of this act. to be reimbursed. CHAPTER VII. DRAINS TRAVERSING MORE THAN ONE COUNTY. shall be made either county. SECTION 1. Whenever it may be desired to construct a drain Application traversing more than one county, or affecting lands lying in to the commore than one county, an application therefor shall be made to missioner of the county drain commissioner of either county traversed by the proposed drain. Such application shall be subject to the Subject to the same conditions and the applicants to the same obligations and tions, etc., as liabilities as in other drains under this act. same condi other drains. other commis ing. SEC. 2. If upon examination the county drain commissioner To notify the shall deem the same to be necessary and for the good of the sioners of public health, convenience or welfare, he shall, as soon as place of meetpracticable thereafter, fix a time and place of meeting and Lotify the county drain commissioner or commissioners of such other county or counties to that effect, and furnish him or each of them with a certified copy of such application. Such county To act jointly. drain commissioner or commissioners shall, at the time and place fixed as above, meet with the county drain commissioner having the original application, and they shall thereupon and thereafter jointly take all steps, and perform all acts, and sign all papers, as county drain commissioners are required to do singly in the case of other drains, including the application to the probate court. special com of order of appointment. SEC. 3. In case all the persons whose lands are traversed Application and appointby such drain, as proposed in this chapter, shall not within ment of three twenty days after the issue of the first order of determination, missioners. as provided in section four of chapter three, have voluntarily released the right of way therefor and all damages on account thereof, the county drain commissioners shall apply to the judge of probate of each county in which any such unreleased lands may be situated for the appointment of three special commissioners. When such application shall be made and Certified copy when all papers shall have been found to be in conformity with the provisions of this act the court to whom such application has been made shall appoint such special commissioners and shall deliver to each drain commissioner a certified copy of the order of the appointment of such special commissioners. Such special commissioners shall be resident freeholders of Must be resithe county and not residents of the township or townships to holders. be traversed by the proposed drain in which they are appointed. All proceedings had in the appointment of special Proceedings commissioners, under the provisions of this chapter, shall be pointment of. dent free had in the ap Duty of special commissioners. Apportionment of costs. Proviso in case of disagreement. Each commis- diction. assessed to township. Apportioned according to benefits. to be furnish clerks. similar to those provided in chapter three for the appointment of other special commissioners. SEC. 4. When such special drain commissioners shall have been notified of their appointment in the manner as provided in chapter three, they shall, at the time and place fixed by the probate court, meet with the county drain commissioners of the respective counties in which such proposed drain is applied for, and view the whole line of such drain, or such portion thereof as shall be deemed sufficient, and shall, under the same oath and condition, perform their services in the same manner and with like effect as herein before provided in this act for other special commissioners. Before any contract for the construction of any part of such drain shall be let the county drain commissioners shall agree and determine upon the just per cent of the whole cost of construction which each county shall bear, which determination shall be in writing and signed by them, and a copy thereof made for each county drain commissioner whose county is affected by said drain: Provided, If said county drain commissioners cannot agree and determine the just per cent of the cost of construction that each county should bear, then it shall be their duty to select a county drain commissioner from some adjoining county, not affected by such drain, who shall have the power to determine said per cent for them, and said county drain commissioner's decision of the just per cent shall be final, and they shall make copies of said determination as above provided. The costs and expenses of said other county drain [commissioner] commissioners shall be paid the same as those of the county drain commissioners of the counties affected by such drain. SEC. 5. Each commissioner shall thereupon assess within his own jurisdiction such amount as may have been determined upon, and shall assess against the townships such per Amount to be cent thereof as may be justly charged against them severally by reason of benefits to the public health, convenience or welfare, or as a means of improving any highway, and the balance he shall apportion against the lands in proAssessments portion as they will be benefited thereby. Each county drain ed to township commissioner shall furnish such several assessments to the several clerks of the townships within his own county, in which How comput- the lands affected thereby may be situated, and such assessed, spread and ments shall be computed, divided, spread, collected and returned in the same manner, in every respect, as provided in the case of other drains constructed under this act. Such assessments shall be subject to the same right of appeal and under the same conditions as hereinbefore provided. The taxes paid by town for such drains, when collected by the township treasurer, shall be paid over to the county treasurer of their respective counties to be disbursed by him on the joint order of the commissioners. returned. Right of appeal. Taxes to be ship treasurer to county treasurer. 1 to be filed missioner. SEC. 6. A full record of such drain shall be made and Entry in drain record book. entered by the several drain commissioners in the drain record books of their respective counties, and a certified copy of all Copy of papers the papers relative to the construction of such drain shall be with county delivered to the other county drain commissioners by the drain drain comcommissioner having the original application which certified copies shall be filed in the office of the county clerk of their respective counties as original papers are required to be filed and with the same force and effect, and all the original papers shall be filed in the clerk's office in the county in which the application was originally made. The parts of each of such Care of drains. drains situated and lying in any one county shall thereafter be under the care and supervision of the county drain commissioner of such county, subject, however, to the provisions of section eight of this chapter. out of State, to be made to be had. SEC. 7. Whenever any proposed drain lies wholly or partly Drain partly in an adjoining state, or the lands to be drained thereby lie application partly in an adjoining state, application for the construction to whom. of such drain may be made to any county drain commissioner representing any county in this State in which any portion of such proposed drain or lands to be affected thereby lie, and the same proceedings shall be had touching the portion of such Proceedings drain or the lands to be drained or affected thereby, lying within this State, as are provided in this act in the case of drains and lands lying wholly within this State: Provided, Proviso as to voluntary reThat before any expense shall be incurred in relation to any lease of right such proposed drain, a voluntary release of the right of way to of way. construct such portion of such drain as may lie without this State and an agreement to keep the same or permit the same to be kept clear from obstruction, shall first be obtained from the parties owning lands outside of this State through which such drain or portion thereof is to pass and such release and agreement shall be filed with the said drain commissioner, and shall form a part of the record of his proceedings in the premises. of drains, in SEC. 8. Whenever a drain, heretofore established and which Cleaning, etc., was constructed in and traverses more than one county, needs two or more cleaning out, deepening, widening or extending, any five free. counties. holders of either county by which such drain is traversed, one or more of whom shall be owners of land, which at the time of its construction was assessed therefor, may make application to the county drain commissioner of either county in which such drain is situated, setting forth the necessity thereof. If, upon examination, such drain commissioner shall Joint action. deem the same to be necessary and for the good of the public health he shall, as soon as practicable thereafter, notify the county drain commissioner or commissioners of such other counties and furnish them with a certified copy of such application and they shall thereupon meet and jointly take such measures as are provided in this chapter relative to drains |